8:03am PT by Eriq Gardner
Harvey Weinstein Argues He Didn't Commit Sex Trafficking Because No One Was Paid
Harvey Weinstein has tried to keep a low profile since bombshell reports exposed rampant alleged sexual misconduct through the years. But the embattled movie mogul must now stand forward to defend himself in the various lawsuits that have been filed over his activity. On Tuesday, Weinstein filed a provocative motion to dismiss in the lawsuit brought by Kadian Noble, a British actress who says she was sexually assaulted during the 2014 Cannes Film Festival in France.
Noble alleges she was lured into a hotel room and promised a movie role before Weinstein undid his belt and started groping her breast. She says that Weinstein pulled her into the bathroom, pulled her shirt down and began forcing her to masturbate him. She's now claiming his acts are in violation of the Justice for Victims of Trafficking Act of 2015.
"Not every alleged sexual assault constitutes a federal violation, however, and plaintiff fails to allege essential elements of the sex trafficking statute," writes Weinstein's attorneys at Kupferstein Manuel and Morrison Cohen. "In particular, Plaintiff fails to allege that she was caused to engage in a “commercial sex act,” as neither she nor Weinstein paid or received anything of value in exchange for the alleged sex act. Without this allegation, Plaintiff cannot assert a viable claim."
A New York judge must accept pleaded facts as true in deciding whether a plausible claim is made to move the case forward.
"Assuming Plaintiff’s allegations are true, they would unfairly expand the federal sex trafficking statute to all sexual activity occurring between adults in which one party holds a superior position of power and influence," continues Weinstein's brief. "Criminalizing such activity is contrary to the statute’s purpose, which is to prevent slavery, involuntary servitude, and human trafficking for commercial gain that affects interstate and foreign commerce."
Weinstein argues there are no allegations of any quid pro quo, but what about that promise of a film role?
"She does not identify a particular role in a particular project that was not only promised, but 'deliberately accepted...in exchange for having sex with' Weinstein," states the dismissal brief, then contending that this is insufficient to establish a "causal connection between the alleged sex acts and an economic benefit to either Plaintiff or Weinstein. There simply was no economic activity in the hotel room in Cannes."
Weinstein goes even further by disputing that the allegations amount to a "sex act" as required by the law.
"The phrase is not a term of art," write Weinstein's lawyers. "However, the provisions that outlaw other sex offenses within the special maritime and territorial jurisdiction of the United States do define the term 'sexual act' as distinct from 'sexual contact.' None of the acts which are alleged to have occurred during Plaintiff’s encounter with Weinstein meet the definition of 'sexual act.' Specifically, Plaintiff claims that Weinstein 'groped her breasts,' rubbed Plaintiff's breasts and buttocks, 'pulled down' Plaintiff’s shirt, masturbated in front of her, and placed Plaintiff’s hand on his penis and 'forced' Plaintiff to masturbate him. Even if all these allegations were true, the actions described by Plaintiff are not 'sexual acts' as defined by 18 U.S.C. § 2246(2), mainly because there was no penetration and/or contact between Weinstein’s and/or Plaintiff’s genitals and mouths."
The Weinstein Company is a co-defendant in the case and has separately filed its own motion to dismiss.
First, the entertainment company argues that the New York federal court has no jurisdiction over an alleged assault in France and that Noble is stretching the sex trafficking law to circumvent the statute of limitations on assault claims.
"Even if her claims against Harvey Weinstein for sex trafficking were viable, this Court must dismiss her claims against TWC, Harvey Weinstein’s employer, because she alleges insufficient facts to support her claims that TWC was engaged in a 'venture' with Harvey Weinstein to engage in sex trafficking," states TWC's dismissal motion. "Even accepting Plaintiff’s allegations as true, and even if such a claim were viable as to Harvey Weinstein, at most she alleges that TWC’s unnamed agents were aware (or should have known) that Harvey Weinstein engaged in unsavory behavior and, at worst, sexually predatory behavior against women. She does not allege in the complaint, however, that TWC was aware (or should have known) that Harvey Weinstein was engaged in sex trafficking."
TWC is represented by attorneys at Seyfarth Shaw, who, like their former leader, warn of the slippery slope.
According to the company's brief, "If this Court allows Plaintiff’s claims to proceed as to TWC, any employer of any individual could be liable for violating the sex trafficking statute whenever the employee commits a sexual assault in the United States or internationally."